New law makes it easier to bring someone to court

by Garland M Baker on March 16, 2009

One big problem within the Costa Rican legal system has been notifying the parties in a criminal or civil court action. Fortunately, this difficulty has been solved with the revamping of the Judicial Notification Law. They even simplified its name.

Expats involved in court actions can now expedite their cases by getting people summoned without waiting for the courts to do so. This applies to legal notices issued both in Costa Rica and anywhere in the world regarding any court action. One just needs to know the tricks offered by the new law and put them in action.
The old law made it difficult to summon people to court. It was called Ley de Notificaciones, Citaciones y otras Communicaciones Judiciales (Law for Legal Notices, Citations and Other Judicial Communications). The new law is just called Ley de Notificaciones Judiciales, (Judicial Notice Law).

The name change seems to illustrate to the average citizen that Costa Rica is making an effort to make laws not only easier to understand but also, and most importantly, easier to execute. A local lawyer who recently attended the three-part seminar for the presentation of this new law stated that at the beginning of the course, the judicial representatives told the over-packed room of interested attendees that this law has been designed to make the summoning process simpler.

In the past, getting someone notified for a court case was difficult, especially when they did not want to be found. Most of the time, failing to notify a person would freeze court actions until the summoning was accomplished. Many wrongdoers would hide from court-appointed servers because they knew that if they were not found, the case against them would ultimately expire and they would get away with whatever they did scot-free.

The old system created many problems with case flow, and courts have not tried too hard to overcome them. On top of being generally difficult to get a judge or a prosecutor to issue a summons or a subpoena, when a citation is finally issued in a case that is moving slowly, notifying the actual defendant could turn to be twice more difficult. In the past — and still today because many people do not know about the new law — the court sends the summons to the Judicial Notification Office, which is not famous for its efficiency. In fact, in many cases where notifying the person should not be difficult at all, officials have returned the citation documents to the court, stating they were unable to complete the process service.

To make things worse, the only way around this inefficient system would be to find another officer in the same notification department and offer them a “tip” to do a better job, which is naturally determined by the size of the tip.

Unlike the old bureaucratic process, the new law offers a more reasonable procedure: the court can assign any notary — by request of any of the parties — to issue a legal notice. Here is an example that shows why this modification is so important:

In the past, when there was a court action against someone in San José, if that person moved to the Costa Rican-Panamanian border, the judge in San Jose would have to send a request to the court closest to the person’s location. This process would not only take a long time, but also many times the authorities in that town would never find the person and return the court documents to San José. Even worse, in most cases the person is in hiding and the court does not have a clue where to send the papers.

Under the new law, one can hire a private investigator to find the party in hiding. Of course, this imposes an additional expense, but it can be an invaluable investment in some cases. Once found, a lawyer can request the judge in charge to issue permission for a notary to serve the court papers. The notary can then notify the party — regardless of their location — to the court process.

For example, someone pressing a criminal or civil action over Real Estate can legally and validly serve a broker who retreated to the United States by simply buying the notary a plane ticket to the broker’s location. Once served, the defendant must answer the court action or face the possibility of a default judgment, which can target their property in the United States.

In addition to routine criminal and civil actions, the new law also covers legal notices for child support and domestic violence cases.

In fact, there was a provision in the old law to use notaries for legal notice service, but no one ever used it. Notaries just needed to apply for the job and none did, mainly because the requirements were too strict and the pay was very low. More importantly, this provision required that they included a summoning act in their legal protocol book – mandatory for any notary’s practice, in which they record every single action they perform in their careers – and most notaries are very wary about what they write in it. They do not even carry it around with them. Under the new law, notaries only need to file a legal testimony paper stating that the notice was successfully served and the person stands summoned by court.

It is common knowledge that lawyers and notaries in Costa Rica do not have the best of reputations. During the past several years, the local press has reported plenty of cases in which notaries have been involved in different kinds of fraud. This fact can also lead any privy reader to believe that it would be fairly easy to find a notary to fake a legal notice.

Hopefully, the creators of the new law have already thought about the possible ramifications of this legislation because otherwise, cases in the future could just get bogged down with fighting over the legal nature of a notice.

Other important changes in the new law have to do with improving court efficiency in Costa Rica. Here are some highlights:

In the past, notifying the parties was required in order to process criminal cases. This requirement obstructed justice because crooks used this bureaucratic red-tape in their favor to postpone or evade conviction. With the new law, the court only has to deliver the initial accusation personally.

Two more elements — among the several changes of the new law — deserve special mention. The law states that every person — individuals as well as legal entities such as companies — have a period of 12 months to update any changes of address at the Civil or National Registry. Once this time period has passed, any legal notice issued to the last address recorded in the Registry is considered valid. The law also states that any legal notices delivered by fax machine are valid after the third attempt: one attempt made the first day and the other two the following day. Even if the fax does not go through after all these attempts, the person is considered duly summoned.

The legal system in Costa Rica is virtually a mess. The criminal system — and this statement comes from several well-known attorneys — is in a complete meltdown, favoring mostly criminals. Many expats affected in fraud cases have lost all their assets merely because of the system’s flaws.

Slowly and subtly, however, the laws in Costa Rica are changing. The new Judicial Notification Law is one good example of how the legal system is replacing obsolete legislations with efficient ones.

Costa Rica Expertise LLC

Garland M. Baker is a naturalized citizen who has resided in Costa Rica since 1972. Lic. Allan Garro is a prestigious Costa Rican attorney and notary. They provide multidisciplinary professional services to the international community, and act as consultants in many cases published here.